(Sonoma County Super. Ct. No. SCR521988). Elliot L. Daum, Judge.
The opinion of the court was delivered by: Bruiniers, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Appellant Marilyn Sibyl Chandler Fenderson was a caregiver for Katherine Majerus, an elderly woman in failing health. After Majerus's death, Fenderson removed over $300,000 from Majerus's bank accounts, claiming that Majerus had given her the accounts. A jury convicted her of one count of grand theft (Pen. Code, § 487, subd. (a))*fn2 and one count of second degree commercial burglary (§§ 459, 460). On appeal, Fenderson contends that her convictions are not supported by substantial evidence and that the individual and cumulative impact of alleged instructional errors requires reversal. Fenderson also argues that recent amendments to section 4019 should be applied retroactively to entitle her to additional presentence custody credits.
In the unpublished portion of our opinion, we agree that the amendments to section 4019 are retroactive and that Fenderson is accordingly entitled to recalculation of her presentence custody credits. Otherwise, we affirm and specifically address in the published portion of our opinion three of Fenderson's contentions: the judgment was not supported by substantial evidence; the trial court failed to instruct the jury on certain probate code provisions; and improper limitations were placed on her claim-of-right defense.
I. FACTUAL AND PROCEDURAL BACKGROUND
Katherine Majerus died on January 22, 2006, at the age of 96. Fenderson had served as Majerus's caregiver.
Deirdre Kruse is an elder law attorney, with a practice in Santa Rosa. Kruse knew Majerus for approximately 23 years. Kruse met several of Majerus's care providers, one of whom was Fenderson. Kruse had prepared between six and eight wills for Majerus over the years. Kruse explained that "[Majerus] had no children and... she only had two elderly brothers and so she was very concerned about where her estate would go upon her death. [¶]... [¶]... [S]he had cats and a dog over the years and so always her bequest had something to do with nonprofit agencies that provided assistance for animals." Majerus never discussed naming Fenderson as a beneficiary. In fact, in all of the wills that Kruse prepared, Majerus had never made a bequest to an individual who was not a family member. In Majerus's 2004 will, Kruse was named as executor.
Majerus's 2004 will was prepared by Linda Barker Perkins, an associate attorney in Kruse's office. The 2004 will bequeathed $5,000 to one of Majerus's brothers, with the residue to be split by Guide Dogs for the Blind, Forgotten Felines, and Valley of the Moon Children's Home. No other individuals were named in the 2004 will. Fenderson's name was never mentioned to Barker Perkins in connection with the 2004 will.
On January 26, 2005, Majerus told Kruse "I don't trust [Fenderson,]... but I don't have anybody else." Kruse offered to help Majerus find someone to replace Fenderson, but Majerus explained that she was fearful about starting over with someone else. Kruse and Majerus had similar conversations "[m]any times" over the years. In 2005, Majerus contacted Kruse regarding the sale of her home. After selling her home, Majerus moved into various assisted living facilities.
Kruse learned of Majerus's death when she saw her obituary in the paper. Both Kruse and Fenderson attended Majerus's funeral. At the funeral, Kruse asked Fenderson for Majerus's bank records, knowing that Fenderson had helped Majerus with her banking. In reply, Fenderson said that she would bring the documents "right over" to Kruse's office. Fenderson also asked if Majerus had changed her will. Kruse did not respond.
Kruse's office did not receive any documents from Fenderson until a month or two after the funeral. In March 2006, when Kruse received bank records from Fenderson, Kruse only received records from a couple of small accounts at Washington Mutual. Kruse was concerned because her understanding was that the majority of Majerus's assets had been at Wells Fargo. Kruse had not received any records from Wells Fargo, where Kruse assumed the proceeds from the sale of Majerus's home had been placed.
On March 22, 2006, Kruse sent a letter to Wells Fargo notifying it of Majerus's death and requesting information on her bank accounts. Kruse did not receive any response. Concerned that a large sum of money derived from the sale of Majerus's house was unaccounted for, Kruse notified law enforcement.
Kim Nadeau worked as a paralegal in Kruse's office between October 2005 and July 2006. Beginning in February 2006, Nadeau tried to contact Fenderson eight times to obtain Majerus's bank records. Nadeau left a number of messages on Fenderson's answering machine. On February 27, 2006, Nadeau spoke with Fenderson after making two prior attempts. Fenderson explained that she was in the process of moving and was looking for the bank records. Fenderson told Nadeau that she would drop the records off the following week.
Ultimately, Nadeau received Washington Mutual bank records from Fenderson on March 27, 2006. Nadeau testified that she asked Fenderson about records from a Wells Fargo account. Fenderson indicated for the first time that "[Majerus] had given her that account and that's why she wasn't providing records for that account." Nadeau informed Kruse of Fenderson's statements and filed a police report.
Mark Fuston, a sergeant with the Sonoma County Sheriff's Department, testified that he was assigned to investigate after receiving a report from the Windsor Police Department regarding missing estate funds. Fuston contacted Kruse's offices and interviewed Kruse and Nadeau. Fuston then obtained a court order for production of Majerus's financial records.
Majerus's Wells Fargo records show that the proceeds from the sale of her home were deposited into her checking account on February 10, 2005. The records also show that $259,000 was withdrawn from the same checking account on April 7, 2006, after Majerus's death. Fuston also obtained a copy of a Wells Fargo Bank preprinted special power of attorney form, signed by Majerus on June 30, 2005, that gave Fenderson access to Majerus's Wells Fargo accounts.
Fuston was not successful in contacting Fenderson, despite making telephonic requests. On September 19, 2007, Fuston met with a Wells Fargo employee who provided Fuston with a copy of a cashier's check. The cashier's check was dated April 7, 2006, and was made payable to Fenderson in the amount of $304,000. A Wells Fargo withdrawal slip, signed in Fenderson's name, shows a withdrawal of $45,000 from a Wells Fargo savings account on April 7, 2006.
Next, Fuston searched Sonoma County property records and learned that Fenderson had purchased a home in Larkfield on November 17, 2006. A down payment of $184,258.50 had been paid by Fenderson to Chicago Title Company. The check was drawn from Citibank. Two other checks to Chicago Title had been drawn from Fenderson's Citibank account.
Fenderson was arrested on October 5, 2007. After having been read her Miranda rights, Fenderson told Fuston that she had been taking care of Majerus for quite a few years and that Majerus had given her permission to take the proceeds from the sale of her home. Fenderson told Fuston that she purchased the house in Larkfield with the money and also used it to purchase clothing, groceries and to help one of her daughters.
Robert Dortch, a senior investigator with Citigroup Investigative Services, testified regarding Fenderson's Citibank account records. On April 7, 2006, Fenderson's account showed a $304,000 deposit. In addition, Fenderson's account records showed the following transactions: withdrawals of $8,341.58 for April 2006; deposits of $883.51 and withdrawals of $20,370.61 for May 2006; deposits of $824.43 and withdrawals of $8,143.91 for June 2006; deposits of $1,048.92 and withdrawals of $14,050.87 for July 2006; deposits of $418.34 and withdrawals of $9,659.24 for August 2006; deposits of $397.91 and withdrawals of $15,948.97 for September 2006; deposits of $446.15 and withdrawals of $6,677.59 for October 2006; and deposits of $216.07 and withdrawals of $198,922.39 for November 2006.
Fenderson testified that, in 1996, she became licensed as a certified nursing assistant, home health assistant, acute care assistant, and phlebotomist. Fenderson met Majerus that same year. Fenderson began working with Majerus between two and six hours per week. Fenderson would come to Majerus's home and take Majerus shopping or drive her to medical appointments. In total, Fenderson worked with Majerus for 10 years before her death. Fenderson also socialized with Majerus. They celebrated birthdays and holidays together, and Majerus grew to know Fenderson's daughters.
Fenderson testified that Majerus lived at home when Fenderson first began working for her. Majerus sold the house in 2005 when "she wasn't able to keep it up anymore." Thereafter, Majerus moved into a hospital, when she had pneumonia, and then into Deer Creek Manor, a residential care home. Fenderson visited Majerus every day while she was in the hospital and worked two to three hours most days while Majerus was at Deer Creek Manor. Fenderson would write out checks for Majerus's bills and take her shopping or to the park.
Fenderson testified that, in November 2004, Majerus said that "when she passed away,... everything that was in her Wells Fargo accounts" was Fenderson's. Fenderson believed Majerus, stating "I had no reason not to. She'd never lied to me before." Months later, on June 30, 2005, Majerus gave Fenderson power of attorney over Majerus's three Wells Fargo accounts. Fenderson did not read the power of attorney, but understood that "[Majerus] was putting [her] on the account[s] so [she] could take care of [Majerus's] business when [Majerus] wasn't able to."
In April 2005, Majerus fell and broke her back and moved to Dolly's Manor, a facility that could provide more extensive care. Majerus resided at Dolly's Manor until her death. Fenderson continued to work for her a couple of hours a day.
Fenderson was notified of Majerus's death by Dolly's Manor. Fenderson attended Majerus's funeral, along with Kruse, whom Fenderson had known since the 1980's. At the funeral, Kruse asked Fenderson for Majerus's bills and financial records. Fenderson agreed to provide them. They did not discuss Majerus's Wells Fargo accounts.
On cross-examination, Fenderson conceded that she had never seen a will in which Majerus named her as a beneficiary. She knew that Kruse was the attorney who had prepared Majerus's will. Fenderson was never contacted by Kruse and told that she was a beneficiary of Majerus's will. However, Fenderson testified that she did not ask Kruse if Majerus had changed her will.
Fenderson recalled discussions with Nadeau regarding Majerus's financial records. In approximately February or March 2006, Fenderson told Nadeau that Majerus had left her the Wells Fargo accounts. At the end of March 2006, Fenderson provided Kruse's office with some of Majerus's financial documents. Fenderson did not provide any of Majerus's Wells Fargo documents because she believed the money was her own.
Fenderson testified that, on April 7, 2006, she went into a Wells Fargo bank and withdrew $259,000 from Majerus's checking account and $45,000 from Majerus's savings account. Fenderson was asked: "And you did that based upon your position as power of attorney. Is that correct?" Fenderson replied: "No. [¶]... [¶] At that point I was not the power of attorney." Fenderson did not inform Wells Fargo that Majerus had died, believing that her attorney had done so. Fenderson deposited the $304,000 into her Citibank account the same day. Fenderson spent the money in various ways, including purchasing a home in Larkfield.
Donald Oliver and his wife owned and administered Deer Creek Manor. Oliver testified that Majerus lived at Deer Creek Manor between November 9, 2004, and April 1, 2005. According to Oliver, Fenderson visited Majerus four or five days a week and provided services that Deer Creek Manor did not provide. Majerus never complained to Oliver about Fenderson. One day, Oliver overheard Majerus tell Fenderson " 'When I pass away... I'd like you to have the rest of what is left in this account.' " Oliver did not know to which account Majerus was referring. Oliver testified that he had seen Fenderson after Majerus left the facility and had discussed the fact that Fenderson was experiencing legal problems.
Fenderson was charged by information with grand theft (§ 487, subd. (a); count one) of $259,000 from Majerus's estate and commercial burglary (§ 459; count two). With respect to the first count, it was further alleged that Fenderson took property of a value exceeding $150,000. (Former § 12022.6, subd. (a)(2), as amended by Stats. 1998, ch. 454, § 2.) Fenderson was tried by jury and convicted on both counts. The enhancement allegation was also found true.
On December 18, 2008, Fenderson was sentenced to state prison for a total term of four years. Fenderson was sentenced to a two-year term on count one. A two-year term on count two was stayed, pursuant to section 654. Fenderson also received a two-year term for the enhancement. The court ordered restitution, in the amount of $304,000, to be paid to the victims and a restitution fine of $600. Fenderson received a ...